Ben Sheffner's notes on copyright, First Amendment, media, and entertainment law, and political campaigns

Tuesday, January 27, 2009

Did YouTube users actually have 'permission' to upload Warner Music Group songs?

CNET's Greg Sandoval has more on the Warner Music Group takedowns of YouTube videos containing its music. Sandoval focuses on the case of Corey Vidal:

On YouTube, Vidal posted a humorous video tribute to John Williams, the man who scored the soundtracks for such blockbuster films as Indiana Jones, and Star Wars. In his clip he included some of Williams' music. By now, everybody knows that YouTube removes videos that violate copyright law. What's different about Vidal's work getting pulled is that when he posted it in October, he was permitted to use Warner's music.

Until last month, YouTube had an agreement with Warner Music--one of the four largest recording companies--that allowed video creators to include the label's content in their clips. Last month, talks to renew the deal broke down and that means YouTube and its users no longer have access to Warner's library. For this reason, the case is much different than YouTube's high-profile fight with Viacom or run-of-the-mill piracy that once flourished on the site.

But I'm not certain Sandoval is quite right when he says that when Vidal posted his video, "he was permitted to use Warner's music." Here's what I mean: it's true that back in 2006, YouTube and WMG entered into a deal. My understanding of the way the deal worked is that when a user uploaded a video containing WMG music, YouTube employed an automated content identification system (Audible Magic, I believe) that recognized the audio. Instead of blocking or taking down the video, the system enabled some form of revenue sharing between YouTube and WMG.

The interesting existential question is this: though YouTube and WMG worked out a deal such that YouTube wouldn't be liable for copyright infringement for keeping the video on its site, is the uploader himself still an infringer? One way of looking at it is that no one gave him permission to upload it; YouTube and WMG just worked out a way to both profit from his act of infringement. Another way of looking at it (which seems to be Sandoval's take) is that the deal basically gave permission to anyone to upload WMG music; with such permission, there's no infringement at all.

I'm not sure which view is correct; the YouTube/WMG deal probably contains clues as to how those two view the status of the uploader's actions, but it isn't public. Keep in mind that YouTube's terms of service provide:

you further agree that you will not submit material that is copyrighted ... or otherwise subject to third party proprietary rights ... unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant YouTube all of the license rights granted herein.

Again, did WMG, by entering into its 2006 agreement with YouTube, grant permission to everyone to upload its music? Did WMG inform them that they did? Does it matter?

5 comments:

It matters. The licensing is similar to mechanicals but not quite. The mashup is the fly in the ointment. No one seems to know if the licensing accounted for third parties who add new records of authority. IOW, copyright registration is registration of a name and a fixed form. The proof of record of authority is the fixed form. Mashups may or may not derivative (eg, samples) and it gets into the gray areas of fair use.

So yes, the licensing terms matter very much. If WMG and YouTube did not negotiate terms for third party derived works or inclusive works (the record of authority is unaltered but copied into a new frame), then no.

This gets into the whole arena of mashups and the business advisability of building indemnified systems over cloud computing without clear licensing with Ts&Cs and QoS.

But if the fellow is deriving income from his mashup without verifying that, he is not a very smart businessman and whining won't help.

I got confused when you said "the *case* of Corey Vidal." I thought you meant that there was a legal case over this, but no. It seems like the issues you raise would be germane if Warner sued Vidal and/or YouTube to have the video taken down, but if YouTube unilaterally removed the video to avoid the possibility of trouble, isn't that their prerogative?

Also, it sounds like the video is a parody of the music involved, so it might be fair use.

I didn't mean to imply by using the word "case" that WMG had filed a lawsuit -- it appears all they did was send a DMCA takedown notice to YouTube over Vidal's video.

You're right -- YouTube has every right to unilaterally remove anyone's video (unless they specifically contracted to keep it up). But what happened here appears to be that WMG demanded that YouTube remove Vidal's video -- it wasn't YouTube's unilateral move.

From what I understand, YouTube replies to DMCA takedown notices. I think if YouTube removes a video, it's b/c it violates the TOS (for example, a video that contains nudity) but not for copyright infringement. In my case, my video was removed after Universal filed a DMCA takedown with YouTube (I then sent a counternotice). It took YouTube 6 weeks to review my video but they did reinstate it. So they have some hand and some say, just not in the ways some users believe.

What would seem to matter is how did WMG and YouTube interpret the agreement. From the September 2006 press release from YouTube:

NEW YORK, NY and SAN MATEO, Calif. - September 18, 2006 -YouTube, Inc., a consumer media company for people to watch and share original videos through a Web experience, and Warner Music Group Corp. (NYSE: WMG), one of the world's leading global music companies, today announced an agreement to distribute on YouTube the library of music videos from WMG's world-renowned roster of artists as well as behind-the-scenes footage, artist interviews, original programming and other special content. In a first-of-its-kind arrangement, YouTube users will be able to incorporate music from WMG's recorded music catalog into the videos they create and upload onto YouTube...

Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.

Follow me on Twitter

Subscribe by email

Subscribe via RSS

About This Blog and Me

Welcome to Copyrights & Campaigns. This blog provides news and analysis of copyright, First Amendment, and related issues from a pro-copyright-owner perspective, with emphasis on the interaction of these issues with campaigns and the political process.

Between college and law school, Ben worked as a political reporter in Washington, DC at Roll Call newspaper and the Cook Political Report. Ben also served as a consultant to CBS News during the 1994 election cycle, helping prepare producers and correspondents for the election night broadcast. A detailed bio is available here.

This is Ben's personal blog and does not necessarily represent the views of any past, present, or future clients or employers. Nothing herein constitutes legal advice.

Ben lives in Los Angeles and can be reached at copyrightsandcampaigns [at] gmail.com.

"From the dark side...prolific...interesting reads...insightful commentary you can’t find other places in the blogosphere...a just plain good read...the copyright equivalent of Grand Moff Tarkin." -- Arbitrary and Fanciful